The key
issue in this case is whether appellant Dr. Daniel S. Yuan
has clearly identified a state public policy mandate for his
common law wrongful discharge claim for damages against
appellee Johns Hopkins University (JHU or Hopkins). The
premise of Yuan's claim is that he was

Page 522

discharged for reporting " research misconduct"
--reporting protected from retaliation by 42 U.S.C. §
289b and 42 C.F.R. Part 93. For reasons more fully set forth
below, we conclude that the broad language and complex nature
of these federal provisions, their deference to institutions,
such as Hopkins, for the prevention and detection of research
misconduct, and the difficult line they draw between
scientific errors and wrongdoing and between falsity and
fraud, make this a poor State public policy vehicle to carry
a wrongful discharge action. Because the Circuit Court for
Baltimore City did not err in rejecting this claim and others
advanced by Yuan, we affirm.

FACTS
AND PROCEEDINGS

Yuan's
149-paragraph amended complaint sets forth a complicated tale
of an employee who refused to be ignored. The following
represents an abridgment of Yuan's many allegations.

Board-certified
in both General Pediatrics and Pediatric Gastroenterology,
Yuan was a researcher at the JHU School of Medicine. After
clinical training and a research stint at the National
Institutes of Health (NIH), he joined the Pediatrics Faculty
at JHU School of Medicine. Having worked extensively [227
Md.App. 559] in the field of yeast research since 1993, he
eventually joined the lab of Dr. Jef Boeke, a Professor in
the Department of Molecular Biology and Genetics, in 2001.

Boeke's
lab received most of its funding through the NIH. From
February 2002 through June 2011, the NIH gave over $11.8
million to the lab for research on " SLAM," "
an ambitious yeast genetics research project using a novel
methodology." [1] The NIH also provided a $34 million
grant to fund a separate project related to the SLAM
research. From July 2001, Yuan worked in Boeke's lab,
where his initial responsibility in the SLAM project was to
develop the computational infrastructure to manage the
massive datasets that SLAM would generate.

Yuan
expressed to the team his concern that contaminating traces
of DNA from preceding SLAM experiments had led to false
positive results. They, however, resisted Yuan's
suggestions for addressing this problem and began to withhold
data files from him.

Yuan
stated that from 2005 through 2011, he " repeatedly
reported research misconduct with the yeast genetics research
that was caused by falsification of the research
results." On November 28, 2005, Yuan wrote to Boeke
about problems he identified in research performed by Xuewen
Pan, a post-doctoral fellow in Boeke's lab. In an email
exchange, Yuan complained about the research, stating that
Pan's " genes are preselected," and that
continuing with those research projects " will only
generate more useless data." He also stated that the
SLAM team had already established that " most of the
[matches] being identified are bogus."

In
early 2006, Pan's research was published in
Cell, a biomedical journal, with Boeke as the senior
author. Boeke cited Pan's research when he applied for
grant renewals through the NIH. Later in 2006, after the NIH
renewed funding for the SLAM project, Boeke issued a new
organizational [227 Md.App. 560] chart " which had the
effect of excluding Dr. Yuan from extensive involvement with
the SLAM research." Yuan states that he " protested
his lack of a definite professional role in the SLAM

Page 523

Project" and " found himself increasingly
marginalized and excluded from the data management."

From
2006 to 2008, Boeke's SLAM research was not successful.
Boeke asked a colleague to perform a large retrospective
analysis of the production data, which showed an
extraordinarily high " False Discovery Rate." In
the summer of 2008, Boeke decided not to renew his NIH grant
for SLAM, although funding for prior grants would continue
into 2010.

In a
2009 analysis of Pan's microarray data, Yuan found that
Pan could not have obtained the results he claimed, but that
his " conclusion was not that Dr. Pan fabricated the
results; instead, Dr. Pan likely conducted the experiment
with preconceptions of the results he wanted to find -- and
then managed to find those results." Yuan reached a
similar conclusion with respect to a paper published by Dr.
Yu-yi Lin in Genes & Development. In January 2009,
Yuan notified Boeke and SLAM's project manager of these
problems with the Pan 2006 and Lin 2008 papers.

In
December 2009, Boeke informed Yuan that he would not be
renewing his faculty contract for 2011, unless he secured
self-sustaining funding within the next year. Although Boeke
claimed this was due to a lack of funding, at the same time,
Boeke established positions for three other individuals who
had worked on SLAM full-time.

On
January 15, 2010, at a seminar in the Boeke lab, Yuan said
that ten months earlier, he had discovered " bizarre
zigzag patterns after plotting data for individual genes in
SLAM's Production data in chronological order." He
concluded that these changes " were both non-random and
unpredictable" and that the " zigzags were also
large enough to masquerade as the genetic interactions SLAM
was looking for."

On June
29, 2010, in the last week of the NIH funding of SLAM, Yuan
wrote to Boeke that he had analyzed the production team's
last 118 experiments, finding that about 10 percent [227
Md.App. 561] had " noise" (bad data) with no
apparent cause and only about 10 percent " looked pretty
good."

On
December 14, 2010, Dr. Carol Greider, the director of the
Department of Molecular Biology and Genetics, offered Yuan a
part-time support staff position for the 2011 year, at a
salary of $24,800, well below his salary as a researcher.
Yuan accepted the position. However, from January 2011 on,
Boeke excluded Yuan from activities in the lab.

On
April 29, 2011, Dr. Lin, now at National Taiwan University,
conducted a seminar in Dr. Boeke's lab. Yuan asked Lin a
number of questions to which Lin and Boeke did not provide
adequate responses.

On June
29, 2011, Yuan submitted a manuscript for publication in
which he listed himself as the sole author. Greider issued a
written reprimand to Yuan for failing to offer Boeke shared
authorship of the manuscript. On July 8, 2011, Yuan met with
Joan Johnson, a Human Resources representative for JHU School
of Medicine to discuss his concerns about Greider's
reprimand. He explained that his employment problems arose in
the context of the lack of results produced in the lab,
despite over $12 million in NIH funding and the "
inexplicable vehemence" that Boeke and Greider exhibited
towards him. On December 22, 2011, JHU denied Yuan's
grievance appeal.

Yuan's
employment was scheduled to end on December 31, 2011. Prior
to this date, he requested a property pass from Boeke, so he
could move his research collection of archived cells out of
the lab. Boeke refused to grant him the property pass until
the two had " come to an under

Page 524

standing of all the issues" relating to which files and
materials Yuan could remove. On November 29, 2011, JHU,
through an attorney, informed Yuan that he could remove
" biological samples and data" without prior
permission. Yuan had in his archives, prior to his departure,
about 2,000 samples, occupying less than two cubic feet of
freezer space.

On
November 30, 2011, Yuan requested an affidavit or other
confirmation that Boeke would give Yuan free access to
Yuan's [227 Md.App. 562] archived cells for a period of
five years. Although Boeke initially accepted this modified
request, JHU did not provide access.

On
December 14, 2011, Boeke notified Yuan that his office had
been emptied and his possessions had been locked. On December
15, 2011, Yuan, after seeking access to his materials, was
escorted from the workplace by JHU Security Officers.

Subsequent
to his departure from JHU, Yuan interviewed for other
positions at JHU, but was not hired. Beginning in September
2011, Yuan looked for employment outside JHU. Soon after,
Yuan was invited to interview for a position at
ComputerCraft. He was told that his curriculum vitae
had been received favorably by other employees and that he
was invited to prepare a brief talk and to stay for a few
hours to interview. On December 18, Yuan asked, through an
e-mail, for Dr. Beverly Wendland from JHU to speak as a
reference on his behalf; he never received a response. Yuan
stated that upon " information and belief, after
ComputerCraft contacted Dr. Wendland (and possibly others at
JHU)," they " provided a negative reference for
him."

Early
in 2012, a " Letter" (equivalent to a research
paper) was published in the journal Nature, listing
Lin and Boeke as the authors. After reviewing the paper, Yuan
believed that there were serious conceptual errors in it.
Specifically, he concluded that the data underlying the paper
was not reproducible.

On May
14, 2012, Yuan, through counsel, informed Ronald J. Daniels,
the president of JHU, and Edward D. Miller, the president of
the School of Medicine, about " serious scientific
problems" in the paper, including

a near-total lack of correspondence between the genetic
interactions identified in this paper and the raw datafiles
from which those genetic interactions were supposedly
derived. The assertions made in this paper, that its new
microarray methodology provided data for the "
genome-wide" identification of genetic interaction,
appears to be [227 Md.App. 563] false.
Significantly, this is the same type of problem that has
beset the SLAM project for the entire duration of its
production phase.

(Emphasis added).

On May
21, 2012, Patricia L. McClean, JHU senior associate general
counsel, responded, " [t]he School of Medicine is
looking into the allegations of research misconduct made in
your letter under its Procedures for Dealing with Issues of
Research Misconduct." No one from JHU sought to
interview Yuan or obtain further information from
him.[2]

On July
24, 2012, Yuan forwarded a " Communication Arising"
( i.e., a rebuttal) to Lin and Boeke's
Nature article. Neither doctor responded to Yuan. On
August 8, 2012, Yuan received an email sent from Lin's
email account stating, " Dr. Yuan, Yu-yi

Page 525

[Lin] passed away this morning. Now you must be very
satisfied with your success. Congratulations[.]" Lin had
died from an apparently self-administered overdose of
sedatives. In previous days, he had attempted to jump off a
building and his wife stated that he was concerned about a
" conduct-of-research" case.

On
February 11, 2013, Yuan received an email from Boeke asking
if he would be willing to sign a " correction" to
the 2006 Cell paper, which stated that " the
fraction of genetic interactions that could be traced back to
the paper's SLAM-based microarray data was 75 percent,
not 90 percent as originally stated." The next day, Yuan
informed Boeke that he would not sign the proposed
corrections, but Boeke submitted them. The paper was
submitted to Cell, which published it as an "
Erratum" on May 23, 2013.

On
November 6, 2013, the Nature paper was also
retracted, without a " correction." Boeke admitted
that " the Methods section in our Letter is inaccurate,
and that for 38% of the interactions found by the primary
screen there was discordance in sign," which confirmed
Yuan's findings.

[227
Md.App. 564] On December 13, 2013, Yuan filed a complaint for
damages against JHU in the Circuit Court for Baltimore City,
alleging wrongful termination in violation of public policy.
Yuan based his wrongful discharge action on 42 C.F.R. §
93.100 et seq., which establishes a federal administrative
mechanism to police intentional, knowing, or reckless "
research misconduct" that represents " a
significant departure from accepted practices of the relevant
research community." Id. at §
93.104.[3] He also asserted claims for
conversion, and tortious interference with prospective
economic advantage. On March 14, 2014, JHU filed a motion to
dismiss or, in the alternative, motion for summary judgment
and request for a hearing. On May 12, 2014, the court held a
hearing and then, dismissed Yuan's claim. Judge Lawrence
Fletcher-Hill concluded:

Dr. Yuan has failed to allege with sufficient specificity
either that he objected to research misconduct or that even
if he had that those particular objections in the context of
this case would amount to a violation of a clearly
established public policy. There are two issues with the
complaint. There certainly are ample allegations that Dr.
Yuan raised and continued to raise issues within his lab with
Dr. Boeke and with others about the conclusion being reached
by the research, [and] the manner in which the research was
conducted. But the allegations very carefully skirt the line
of fraud, falsification of data or manipulation of data.

And it is a good illustration of why this tort needs to be
drawn narrowly [so] that it does not amount to the
opportunity for courts to litigate debates, intellectual
debates within the scientific community about methodology or
research methods or conclusions. Based on the allegations,
even giving them full credit, until after Dr. Yuan was fired,
his objections amounted to those types of intellectual
debates and challenges within the lab.

[W]hile there's no question that academic integrity and
research integrity is an important value, I conclude that it

Page 526

does not rise to the level that the Court of Appeals would
recognize as the clear public policy necessary to support [a]
cause of action for the tort of wrongful discharge in
Maryland.[4]

The
circuit court rejected Yuan's conversion claim:

[A]lthough it may be that there is a policy at Johns Hopkins
University to on a case-by-case basis allow research material
or research data to be released for the individual or
non-Hopkins use by researchers who have developed it at
Hopkins, the basic policy, which is clearly stated and has
not been challenged here, is that Hopkins asserts its
ownership of all research material and all research data that
has been developed within labs of the University.

Judge
Fletcher-Hill added: " Hopkins could not have converted
what it in fact had ownership of."

Finally,
turning to the tortious interference count, the court said:

[T]he plaintiff has agreed that that count is limited to the
fourth job, the one in private industry, that Dr. Yuan
alleges he did not get. However, he has not alleged any
specific facts to establish who at Hopkins said what to whom
or how that effected his chances to get that job; and
therefore, the allegations are insufficient to sustain that
cause of action.

From
the judgment of the circuit court, Yuan filed a timely notice
of appeal.

[227
Md.App. 566] QUESTIONS PRESENTED

Yuan
presents the following questions:

1. Did the Circuit Court err in dismissing Dr. Yuan's
wrongful termination in violation of public policy claim by
deciding facts and inferences against the plaintiff, but in
favor of defendant, in concluding that his reports of
research misconduct did not rise to the level of reporting
falsification or fabrication, contrary to the well-pled
allegations of his complaint?

2. Did the Circuit Court err in dismissing Dr. Yuan's
wrongful termination in violation of public policy claim by
refusing to recognize the federal statute and regulations
prohibiting ...

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